Some common legal issues about agreed matrimonial property regime

Regarding the matrimonial property regime, most countries worldwide currently employ two prevalent matrimonial property regimes simultaneously: statutory (by law) and unity (by agreement). Nevertheless, in some countries, the agreed property regime may not have been codified concurrently with the statutory property regime. Instead, it might have emerged later, evolving alongside changes in socio-economic conditions and perspectives on marriage, which has allowed prospective spouses to agree on the property regime before marriage. In Vietnam, the agreed matrimonial property regime was initially documented with the introduction of Law on Marriage and Family 2014, providing a framework for couples to establish regime for their joint property during their married life. The following article elucidates key aspects of agreed matrimonial property regime under Vietnamese law. 

1. Agreed matrimonial property regime  

According to the Law on Marriage and Family 2014, couples are granted the freedom to choose between applying the statutory property regime or the agreed property regime. However, specific concepts for each property regime are not officially introduced in current legal documents; instead, they are elucidated through legal regulations. In the case of the agreed property regime, various authors have offered interpretations. Some describe it as a set of systematically developed rules by spouses, founded on legal permissions, aimed at replacing the default legal property regime, regulating the property relationship between husband and wife.1 Or the agreed property regime can be understood as a contractual arrangement between spouses, governing the property ownership relationship, including stipulations related to the establishment, grounds for division of property, as well as the rights and obligations pertaining to property between husband and wife, and potentially involving a third party.2 

With the principle of freedom of commitment and agreement in civil relationships, the law allows husbands and wives to give precedence to the application of the agreed property regime over the statutory property regime. Therefore, the statutory spousal property regime only applies in cases where the couple either does not choose to apply the agreed property regime or has reached an agreement on the property regime that was declared invalid by the court, as per the provisions of Article 50 of the Law on Marriage and Family 2014.3

In accordance with Article 47 of Law on Marriage and Family 2014, when a married couple opts for the agreed matrimonial property regime, the agreement must be in writing and executed before their marriage. Furthermore, it should be notarized or certified. The establishment of the agreed matrimonial property regime is recognized on the date of marriage registration. Upon analyzing this regulation, the conditions for establishing the marital property regime under agreement are stipulated as follows: 

Firstly, it is essential that an agreement on property regime of spouses must be formulated before marriage. To establish the property regime during the marriage period, the law specifies that if the husband and wife wish to mutually decide on the property regime, they must enter into an agreement before formalizing their marital status, i.e., before officially becoming husband and wife. Once the couple is married, there is no basis for creating such an agreement, as the statutory property regime is automatically applied at that point. 

Secondly, the agreement on property regime of spouses must be documented in the form of a notarized or authenticated document. This agreement plays a significant role in defining the assets of the parties during the marriage, making it susceptible to disputes between the involved parties and third parties engaging in transactions related to the couple’s joint or separate assets. Therefore, mandating that the agreement be formalized in the form of a notarized or authenticated document serves to ensure its effective implementation and helps mitigate potential disputes. 

Thirdly, the agreed matrimonial property regime will take effect from the date of marriage registration. To accurately determine the assets of the parties during the marriage period, the matrimonial property regime becomes operative and meaningful only when the marriage is officially registered. Consequently, instances of illegal marriages or marriages registered at an agency without proper authority, in principle, will not be able to establish the agreed property regime, even if a written agreement on property regime of spouses was previously established.4

It is also important to emphasize that the agreement on matrimonial property regime is distinct from the prenuptial agreement, a concept well-known in many countries worldwide but not specifically regulated in Vietnam. Prenuptial agreements (also known as prenuptial contracts, antenuptial agreements, or premarital agreements) are understood as agreements between parties contemplating marriage that alter or confirm the legal rights and obligations that would otherwise arise under the laws governing marriages that end either through divorce or death.14 The substance of the prenuptial agreements may vary extensively but  it  normally  incorporates  arrangements  for  division  of  property,  spouses  and  children maintenance, and guardianship of children in the event of a divorce.5 Therefore, prenuptial agreement is a broader category of agreement compared to the matrimonial property regime under agreement in Vietnamese law, which only grants the right to spouses to agree on property-related matters.  

2. Key content of the agreed matrimonial property regime 

According to Article 48 of the Law on Marriage and Family 2014, the agreement on the property regime of husband and wife includes the following basic contents: 

Firstly, the agreement aims to delineate the common and separate property of the husband and wife, constituting the foremost and pivotal aspect of the matrimonial property regime. To achieve this objective, spouses may reach an agreement employing one of the following forms: (i) Property relations between the husband and wife encompass both common and separate property; (ii) There is an absence of separate property between the husband and wife, with all assets acquired before or during the marriage considered common property; (iii) No common property exists, and all assets obtained before and during the marriage are owned separately by the respective acquiring party; (iv) Determination based on other mutually agreed terms between the husband and wife.6 

Secondly, the agreement addresses the rights and obligations of the husband and wife concerning common property, separate property, related transactions, and property intended to meet the family’s essential needs. Once the determination of common and separate property is established, it is crucial for the couple to clearly define the rights and obligations of each party regarding these assets. This clarity ensures convenience and minimizes potential issues during the implementation of the agreement. Additionally, stipulating that parties agree on property shares to meet the family’s essential needs aims to prevent situations where responsibilities towards the family, especially children, are neglected, particularly when the parties have agreed to maintain only separate property and no common property. 

Thirdly, the agreement addresses the conditions, procedures, and principles governing property division upon the termination of the property regime. To mitigate the potential for disputes between parties when the property regime concludes, the law mandates that husband and wife, while agreeing on the property regime, must explicitly define the conditions, procedures, and principles for property division at its conclusion. In essence, property can be distributed either according to the method used during the marriage for common property division or based on other mutually agreed principles. In the event of a dispute, priority is given to resolving the issue in accordance with the agreement between the husband and wife.7

In addition to the fundamental aspects outlined earlier, the law allows the parties to agree on other matters related to the matrimonial property regime in accordance with their preferences and the provisions of the law. 

Moreover, the husband and wife retain the right to amend and supplement the agreement on the matrimonial property regime. The process of amending and supplementing the agreement’s content must adhere to the regulations governing the establishment of an agreement as specified in Article 47 of Law on Marriage and Family 2014. Despite various opinions suggesting the need for limits or controls on amendments and supplements to the agreement to protect the rights of third parties, the current law still permits parties to freely make amendments and supplements.8

In summary, while the agreed matrimonial property regime is relatively new to some Vietnamese individuals and the legal regulations governing this property regime are not yet fully developed, the existing regulations in legal documents provide a framework for parties to enter into agreements based on their needs and preferences. 

(1) Nguyen Ngoc Dien, Doan Thi Phuong Diep (2016), Agreed matrimonial property regime under laws of some countries and proposals for Vietnam, Journal of Legislative Studies, No. 15 (319). 

(2) Nguyen Thi Lan (2023), Agreed matrimonial property regime according to Vietnamese law, Doctoral thesis in jurisprudence, Hanoi Law University. 

(3) Art 7 of Decree No. 126/2014/ND-CP. 

(4) Nguyen Thi Thu Hoai (2020), Law on agreed matrimonial property regime according to agreement and some recommendations to improve the law, Industry and Trade Journal. 

(5) Cited from Gary A. Debele and Susan C. Rhode (2006), Prenuptial Agreements in the United States, International Academy of Family Lawyers. 

(6) Gary A. Debele and Susan C. Rhode (2006), Prenuptial Agreements in the United States, International Academy of Family Lawyers. 

(7) Article 15 of Decree No. 126/2014/ND-CP. 

(8) Doan Thi Ngoc Hai (2019), Negotiable property regime of husband and wife in the legal systems of some countries around the world, Electronic Information Portal of the Ministry of Justice. 

(9) See Nguyen Ngoc Dien, Doan Thi Phuong Diep (2016), cited documents; Nguyen Thi Lan (2023), cited documents; Nguyen Thi Thu Hoai (2020), cited documents.

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